Supreme Court Justice Neil Gorsuch is no Scalia

I am a proud Berkeley liberal. I have lived in the Bay Area for the past 20 years and have been a registered Democrat since college.

I have also known Neil Gorsuch for over 20 years, since we were graduate students at Oxford, churning out our dissertations in the Law Library.

I attended Gorsuch’s confirmation hearing and listened carefully to what he had to say. His testimony aligns closely with the man I know and bears no resemblance to the cartoonish villain portrayed in the many progressive listservs I receive.

For many conservatives, comparing Gorsuch to the late Justice Antonin Scalia is the height of praise. The closer the resemblance, they seem to feel, the better. I have realized that this comparison means different things in different political circles.

To conservatives, Scalia was a brilliant legal scholar who tenaciously advocated for the rule of law. To liberals, he was a bombastic and outspoken social conservative who disingenuously cloaked judicial activism in the garb of “originalism.”

From a liberal perspective, the resemblance is not so strong. And that, I submit, is a good thing. The more I heard during the confirmation hearings, the more confident I am about this.

Gorsuch comes from the mainstream of the legal profession and values consensus. As a judge on the Tenth Circuit, he participated in deciding over 2,700 cases; 97 percent of those decisions were unanimous, and in 99 percent of the cases, he was in the majority.

He is equally likely to dissent from Democrat-appointed and Republican-appointed judges.

In a recent post on fivethirtyeight.com, two Virginia law professors reported their analysis of hundreds of Tenth Circuit immigration and employment cases. As they explained, “Instead of arguing over cherry-picked cases and anecdotes, we took a closer look at his record . ... Our results were surprising. In our analysis Gorsuch’s record puts him near the ideological center of the Tenth Circuit.” They detailed the data supporting this observation.

On the issue of privacy, Scalia characterized substantive due process, one of the underpinnings of that right, as a “total absurdity.” Gorsuch, by contrast, unambiguously testified he believes the Constitution includes a right to privacy — the right that underpins the rights to use birth control and abortion, among others.

Sen. Coons asked him, “Do you believe the Constitution contains a right to privacy?” He answered, “Yes, Senator, I do. Privacy is in a variety of places in the Constitution,” rattling off a list of places.

Scalia explicitly called for Roe v. Wade to be reversed. But when Gorsuch was asked about Roe, he answered that it “is a precedent of the United States Supreme Court. It has been reaffirmed. The reliance interest considerations are important.”

Later, he added, “once the case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

Viewed through the lens of his work on the law of precedent, this is an acknowledgement that the ruling is solidly established.

On the Equal Protection Clause, Scalia asserted that the Fourteenth Amendment does not prohibit gender discrimination. By contrast, Gorsuch testified, “it matters not a whit that some of the drafters of the 14th Amendment were racists. Because they were. Or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote . ... And equal protection of the law does not mean separate and advancing one particular race or gender. It means equal.”

From the liberal perspective, there is considerable daylight between the two justices. And for that, I am grateful.